Epstein, "The Unfortunate Saga of Joseph Bruno"

The Unfortunate Saga of Joseph Bruno

Richard A. Epstein

Ricochet.com

August 7, 2013

On April 2, I wrote a column for Defining Ideas at the Hoover Institution entitled "The Persecution of Joseph Bruno", in which I attacked the decision of Richard S. Hartunian, the U.S. Attorney for the Northern District of New York, to bring additional charges against Joseph Bruno, the now-former New York Senate Majority leader. In that earlier column, as now, I did not make any judgment about the guilt or innocence of Mr. Bruno, but only objected to what I think is the shabby treatment that he has received under the law.

In that earlier case, Mr. Bruno, who had provided consulting services during his senate tenure without making the required disclosures, was charged with engaging in ”a scheme or artifice to deprive another of the intangible right of honest services,” a charge that did not require proof that Mr. Bruno had engaged in transactions that involved bribes or kickbacks (thus making the prosecution a much lighter lift). That theory of “honest services” was rejected by the United States Supreme Court in Skilling v. United States, which meant that the prosecution had to be thrown out.

At that point, Mr. Hartunian, who had decided not to pursue a quid pro quo theory in the earlier case, decided to bring the charge after all, knowing that it was harder to prove than the earlier one. For all I know, Hartunian might have been able to make the stronger charge stick. Bruno’s lawyers, however, claimed that the prosecution could not bring back to life the claim that it had chosen not to bring the first time around, relying on the decision in Saylor v. Cornelius, which found an abandonment in the claim never brought.